Complainant

Respondent

Parties

Liam  Kelly

Muintir Na Tire

Representatives

Leanne O'Neill

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00054452-001

11/01/2023

This claim was submitted on 11th of January 2023 and contains an allegation that the complainant was subjected to unlawful discrimination under the Employment Equality Act 1998 wherein the complainant states:

.“I was formally proposed as a Director to Muintir na Tire by 2 Community Groups at the 2021 Annual General meeting on the 11th of February 2022”    The complainant refers to the decision of the Board not to appoint him as a director as the discriminatory act of which he complains.  This decision was notified to him on 8th February 2022.

The cognisable six-month period in respect of the within claim submitted on 11th of January 2023 dates from 12th of July 2022.

The respondent submits that these complaints are out of time as they have been filed outside of the six months timeframe permissible for the filing of complaints seeking adjudication.

The complainant submits that he  was formally proposed as a Director to Muintir na Tire by 2 Community Groups at the 2021 Annual General meeting on the 11th of February 2022. This was disallowed by the Governance Committee.

The complainant submits that he has victimised and not given equality of treatment by the respondent.

In respect of time limits the complainant submits that he  contacted the WRC for guidance in the matter on 15th of March 2022 and submits that he was told this matter should be pursued through internal grievance/appeal procedures rather than through the WRC process.

The complainant also submits that he believed internal proceedings were required before filing a WRC complaint as per the respondents election rules.

The complainant submits that he relied on the WRC’s advice, and  believed internal proceedings were required before filing a WRC complaint and in any event Muintir na Tire had provided an appeals process as per no 13 of its election rules.

The claim was submitted outside of the cognisable six-month timeframe allowable under the Acts.

The Complainant has not identified any protected ground under the EEA 1998 on which to base his claim of discrimination.

The claim mentions victimisation but does not outline any protected Act within the meaning of Section 74, following which adverse treatment occurred.

The position applied for by the Complainant was entirely voluntary and was not a relationship governed by a contract of employment for the purposes of the 1998 Act.

At the first hearing of the within matter on 12 May 2025, the Respondent raised a number of preliminary issues. The  Adjudicator allowed the complainant an adjournment to provide written submissions regarding the preliminary issues raised.  The Respondent was given an opportunity to respond thereafter.

A number of preliminary issues were raised by the Respondent, the first issue raised relates to times limits and whether the complainant was submitted within the timeframe provided within the acts or whether reasonable cause exists which would allow for the extension of those time limits.

Section 41 (6) and (8) of the Workplace Relations Act, 2015 states as follows.

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

These provisions are mirrored in Section 77(5)(a) of the 1998 Act wherein it states that:

 “(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

.Section 77(5)(b) of the 1998 provides for a limited jurisdiction for the WRC to extend the relevant time limit from 6 to 12 months. It states

“On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”

Section 77(5) (b) of the Act essentially provides that where reasonable cause is shown for a delay in presenting a claim under the Act within the six-month time limit provided for at section 77(5)(a), that time period may be extended to a period not exceeding 12 months.

The test for determining if an extension should be granted for reasonable cause was set out by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT 38/2003 as follows:

 “It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Complainant at the material time. The Complainant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Complainant should satisfy the Court, as a matter of probability, which had those circumstances not been present he/she would have initiated the claim in time.”

In the more recent matter of Leon Kinsella -v- Anson Friend DWT209, the Labour Court described the test to establish reasonable cause in the following terms,

“It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay”.

The complainant in this case submitted his claim on the 11th of January 2023 in respect  of an allegation of discrimination which took place on 8th February 2022 over 11 months earlier.

The complainant in support of his application for an extension of the time limits submits that he believed internal proceedings were required before filing a WRC complaint and in any event the respondent had provided an appeals process as per no 13 of its election rules.  The complainant also submits that he contacted the WRC for guidance in the matter on the 15th of March 2022 and was told this matter should be pursued through internal grievance/appeal procedures rather than through the WRC process.

The complainant submits that the Respondent did not allow for anu other forum of resolution in its election rules and that he was clearly forbidden by the respondent from any other process by the words “The Parties waive any right of appeal to any court, insofar as such waiver can validly be made”  The complainant states that if he had known that this internal appeals process was going to be just a sham process he would have filed his claim with the WRC immediately and within six months.   The complainant at the hearing reiterated that he was advised by the WRC that he should pursue the matter as an internal grievance firstly.

The complainant also advised the hearing that the respondent took five months to deal with the issue further delaying the matter. 

The respondent submits that the complainant cannot rely on his decision to pursue his grievance through the Respondent’s complaints mechanism to ground an application to extend time. The respondent states that the complainant was perfectly entitled to commence the within proceedings while his grievance or appeal was dealt with internally and chose not to do so.

The respondent states that the Complainant, in his submission, claims that he was advised by the WRC that he should pursue his complaint internally. This assertion appears to arise from correspondence between the Complainant, and the WRC general information service email dated 15 March 2022.  The respondent points to the Complainant’s email to the WRC of 15 March 2022, which while entitled “Equality and Discrimination” doesn’t actually disclose any complaint under the EEA 1998.  Instead, the Complainant, in the said email, states that he has been declined as a candidate for the Board of the respondent because of a conflict of interest but No equality claim is disclosed.  The respondent notes that the WRC replied by email of 15 March 2023 and based on the nature of the query raised by the Complainant indicated that he could use the internal grievance process or commence the matter by way of Industrial Relations Complaint with the WRC.  Further, the WRC email states that the email is for general information purposes only and that the Complainant should seek legal advice.

The email invites the Complainant to consider the other information sources which are available on the WRC website which it states may be useful in making a complaint “for hearing by an adjudicator”. Further the said email asks the Complainant to contact the WRC should he have a more specific query. The respondent submits that  the Complainant was not told by the WRC or anyone else to refrain from commencing a claim under the 1998 Act but was provided with general information in response to his initial email and there is no evidence that the Complainant followed up in the manner outlined in the WRC email to obtain further information or to lodge a claim for hearing by an adjudicator.

The respondent advised the hearing that the complainant continued to engage with the respondent throughout the six-month period thus showing that there was nothing to prevent him lodging a complaint to the WRC during that time frame.  In addition, the respondent states that the fact that the complainant engaged with the WRC in March 2022 shows that the complainant knew where to go to  try and resolve his issues. 

In considering the reasons advanced by the complainant, I must be satisfied that they both explain and justify his delay in referring the within complaint which should have been submitted by 7th of August 2022 in order to comply with the 6-month time limit.

Having considered the Complainants application for an extension of the cognisable period for the purposes of the present complaint, along with the submissions made in respect of the application for the extension of the time limits from 6 months to 12 months I find that the same do not explain or excuse the length of delay in referring the same.   Having regard to the foregoing, and the authorities cited above, I find that the Complainant has not established “reasonable cause” as required by the Act.   

I find that as the complaint has  been referred to the WRC in outside of the six months  timeframe and as the Complainant has not established “reasonable cause” which both explains and justifies the delay, the claim is  statute-barred and accordingly, I do not have jurisdiction to investigate this complaint.   

I find that as the complaint has  been referred to the WRC in outside of the six months  timeframe and as the Complainant has not established “reasonable cause” which both explains and justifies the delay, the claim is  statute-barred and accordingly, I do not have jurisdiction to investigate this complaint.